PEOPLE v. SMITH (2001)

Judgment, Supreme Court, New York County (Michael Obus, J.), rendered September 16, 1998, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing her to concurrent terms of 2 1/414 to 4 1/212 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning credibility.   Following a prostitution-related conversation involving the complainant, the codefendant and defendant, the codefendant snatched the complainant's food stamps.   As the complainant struggled with the codefendant to reclaim his property, defendant repeatedly kicked the complainant in the back and kidneys.   The evidence warranted the conclusion that defendant used force against the complainant for the purpose of assisting the codefendant in his efforts to retain the stolen food stamps (see, People v. Allah, 71 N.Y.2d 830, 527 N.Y.S.2d 731, 522 N.E.2d 1029;  Matter of Simone J., 216 A.D.2d 252, 629 N.Y.S.2d 27).

 The court properly declined to charge the lesser included offense of petit larceny since there was no reasonable view of the evidence to support that charge, particularly since defendant testified that there was no theft at all (see, People v. Smith, 240 A.D.2d 300, 658 N.Y.S.2d 621, lv. denied 90 N.Y.2d 911, 663 N.Y.S.2d 523, 686 N.E.2d 235;  People v. Ruiz, 216 A.D.2d 63, 628 N.Y.S.2d 80, affd. 87 N.Y.2d 1027, 644 N.Y.S.2d 137, 666 N.E.2d 1050).

Defendant's complaints about the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged comments were fair response to the summations of defendant and the codefendant and could not in any event have deprived defendant of a fair trial, particularly in view of the court's instructions to the jury (see, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724;  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977).

We have considered and rejected defendant's remaining claims.